ELD-032

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-9003
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IN RE: JEFFREY A. BEARD; LOUIS B. FOLINO;
AND FRANKLIN J. TENNIS,
Petitioners
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Eastern District of Pennsylvania
(Related to E.D. Pa. No. 08-cv-5061)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
May 25, 2010
Before: SCIRICA, HARDIMAN and NYGAARD, Circuit Judges.
(Filed: June 3, 2010)
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OPINION OF THE COURT
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PER CURIAM.
The Commonwealth of Pennsylvania petitions for a writ of mandamus to challenge
a discovery order issued by the United States District Court for the Eastern District of
Pennsylvania in a capital habeas corpus matter. For the following reasons, we will deny
the petition.

I. Background
In 1995, after a jury trial, the Court of Common Pleas of Philadelphia County
convicted Daniel Gwynn of first degree murder, arson, and other crimes. He was
sentenced to death. In 2008, he filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. 2254. Among others, he raised claims that the Commonwealth withheld
exculpatory evidence, employed suggestive photo identification procedures, and
presented false information to the trial court.
On September 15, 2009, Gwynn filed a motion for discovery pursuant to Rule 6(a)
of the Rules Governing Section 2254 Cases. He sought: (1) complete police and
prosecution files from his case, specifically including photographs used to elicit witness
identifications and police department activity sheets; and (2) complete police and
prosecution files relating to a similar murder/arson that took place about a year earlier,
which occurred in the same location as the murder/arson in Gwynns case and which led
to the prosecution of two individuals, Johnson and Lupton, who Gwynn claims actually
committed the crime for which he was convicted. Gwynn argued he had good cause for
each request.
The Commonwealth responded to Gwynns discovery motion. It agreed to
produce a copy of the pre-trial discovery produced in the state proceedings, the police
activity sheets, and the transcript from the Lupton trial. The Commonwealth opposed the
remaining discovery requests as premature, arguing that, because Gwynn had not yet filed

a memorandum in support of his habeas corpus petition, he had not established, among
other things, that his claims had been properly raised and developed in state court. In
addition, the Commonwealth argued that, if he had filed a supporting memorandum, it
would be apparent that Gwynns claims are procedurally defaulted and meritless. Finally,
the Commonwealth argued that production of complete police files results in a fishing
expedition and would chill the conduct of police investigations in the future.
In reply, Gwynn argued that the discovery requests are not premature as a matter of
law and that discovery would assist him in determining whether he can establish a basis to
overcome any potential procedural default. Gwynn also reiterated the good cause
underlying his requests.
On March 19, 2010, the District Court granted Gwynns discovery motion. The
Commonwealth filed a petition for a writ of mandamus on April 15, 2010.
II. Analysis
A.
A habeas petitioner, unlike an ordinary civil litigant in federal court, is not
automatically entitled to discovery under the Federal Rules of Civil Procedure. Bracy v.
Gramley, 520 U.S. 899, 904 (1997). Under Rule 6 of the Rules Governing 2254 Cases,
a party seeking discovery must make specific requests and must provide reasons for the
requests. See Rule 6(b). Upon such a motion, the District Court may, for good cause,
authorize a party to conduct discovery under the Federal Rules of Civil Procedure and

may limit the extent of discovery. Rule 6(a). The United States Supreme Court has held
that a District Court has a duty to permit Rule 6 discovery in a habeas corpus matter
where specific allegations before the court show reason to believe that the petitioner
may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to
relief. . . . 1 Bracy, 520 U.S. at 908-09.
The thrust of the Commonwealths petition focuses on the contention that the
District Courts discovery order permits Gywnn to develop claims that he failed to
preserve in state court. Before we may consider the Commonwealths claim, however,
we must address a determinative threshold issue: whether, under the circumstances of
this case, our mandamus jurisdiction permits us to immediately review the District
Courts discovery order.
B.
We have authority to issue a writ of mandamus under the All Writs Act. 28 U.S.C.
1651(a); see In re Chambers Dev. Co., 148 F.3d 214, 223 (3d Cir. 1998). Mandamus is
a drastic remedy granted only in the most extraordinary situations. Hahnemann Univ.
Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996). Before we may exercise our discretion
to issue the writ, the petitioner must establish both a clear and indisputable right to

The Commonwealth argues that the provision limiting the availability of an

evidentiary hearing in habeas corpus cases where a state prisoner fails to first develop the
factual basis of a claim in state court, see 28 U.S.C. 2254(e)(2), similarly circumscribes
the availability of document discovery. We have not previously addressed this issue and,
given our disposition of this petition, need not do so in this case.
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relief and that there is no other adequate means to obtain relief. See In re Diet Drugs
Prods. Liab. Litig., 418 F.3d 372, 378-79 (3d Cir. 2005). The writ does not provide a
substitute for an appeal. See Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 381 (2004).
As a general rule, the normal appeal process provides the opportunity to obtain
relief from a District Courts pretrial discovery order. Accordingly, civil litigants must
wait until after final judgment to vindicate their rights relative to such orders. See 28
U.S.C. 1291; Mohawk Indus., Inc. v. Carpenter, 130 S. Ct. 599, 606 (2009). Indeed, if
we were to routinely issue the writ of mandamus to review discovery orders, we would be
encouraging the sort of piecemeal litigation we have been specifically instructed to
discourage. See Kerr v. U.S. Dist. Ct. for N. Dist. of Cal., 426 U.S. 394, 403 (1976).
Under appropriate circumstances, however, we may exercise our discretion to
issue a writ of mandamus to promptly correct the most serious and fundamental District
Court errors concerning pretrial discovery matters. See Mohawk, 130 S. Ct. at 608. For
instance, the United States Supreme Court has acknowledged that mandamus may be
appropriate where a pretrial discovery order reflects a judicial usurpation of power or a
clear abuse of discretion, or where necessary to remedy a manifest injustice. Id. at 607.
Here, the Commonwealths basic contention is that the District Court committed
legal error in determining whether good cause supports the discovery requests in the
underlying habeas corpus matter. See Bracy, 520 U.S. at 908-09. A claim of legal error
in a discovery decision generally does not fall within our mandamus authority. The

Commonwealth has not, for example, set forth a claim that the District Court acted
entirely without jurisdiction. See In re Sch. Asbestos Litig., 921 F.3d 1310, 1314 (3d Cir.
2000) (Courts traditionally have employed writs to restrain jurisdictional excesses,
particularly when a lower court has acted without authority to do so.); see also In re
Pruett, 133 F.3d 275, 280 (4th Cir. 1997) (Because the issue involves the courts
authority to act ex parte at all and not whether discretion was or was not properly
exercised, we believe mandamus is the only adequate means of testing the issue.).
Nevertheless, the Commonwealth proposes that mandamus should lie to
immediately consider its claim, arguing that we have expressed a preference for granting
the writ to permit immediate review of discovery orders in habeas corpus matters.
(Petition at 5, n.4.) However, the Commonwealth provides no support for its proposal
that the habeas corpus discovery context alone establishes a basis for granting mandamus
relief.2 To the contrary, we do not apply such black letter rules to mandamus
determinations. See In re Sch. Asbestos Litig., 977 F.2d at 772-73.
Next, the Commonwealth asserts we should grant mandamus because this habeas
corpus discovery order implicates decisions made by state courts. The United States
Supreme Court has long recognized the principles of federalism and comity at stake

To the extent the Commonwealth attempts to rely upon decisions by the Court of
Appeals for the Ninth Circuit, that Court applies a balancing test in which clear legal
error may provide the sole basis for issuing the writ of mandamus. See Calderon v. U.S.
Dist. Ct. for N. Dist. Cal., 98 F.3d 1102, 1105 (9th Cir. 1996). We have not adopted the
Ninth Circuits approach.
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when state prisoners attempt to use the federal court to attack their final convictions.
Dist. Attys Office of 3d Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2324 (2009) (Alito,
J., concurring) (citations omitted). However, we cannot conclude that the mere existence
of these interests requires our immediate intervention in the District Court proceeding.
We may review the habeas corpus discovery order, and address any comity, federalism, or
other important interests it may implicate, during the course of an ordinary appeal when
the District Court has entered a final judgment. The Commonwealth has not established
otherwise.
Finally, the Commonwealth contends the District Courts order infringes upon its
general interest in protecting police files from public disclosure. Mandamus may be
appropriate in cases in which a party has been ordered to produce documents entitled to
protection based upon a recognized privilege or confidentiality interest. See RhonePoulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 861 (3d Cir. 1994); Bogosian v.
Gulf Oil Corp., 738 F.2d 587, 591 (3d Cir. 1984). Here, however, the Commonwealths
broad invocation of a general confidentiality interest is insufficient. To warrant
mandamus, the Commonwealth must demonstrate that compliance with the District
Courts order will destroy the interest that requires protection in this case.3 See In re

The Commonwealth argues that routine defense access to full police files is
eventually going to get someone threatened, hurt or even killed. (Petition at 4.) While
protecting individual safety is indeed important, the Commonwealth has offered nothing
more than a broad generalization and has not identified a concern specific to the
underlying proceeding. Moreover, the District Court is equipped to fashion a variety of
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Chambers Dev. Co., 148 F.3d at 227 n.9; Bogosian, 738 F.2d at 591. The
Commonwealth has not met that burden.
C.
In sum, the Commonwealth contends the District Court improperly granted
Gwynns habeas corpus discovery requests. Because the Commonwealths claims may be
addressed in the course of an ordinary appeal, the Commonwealth has not established that
there is no other adequate means by which it may obtain relief from the District Courts
habeas corpus discovery order. See Kerr, 426 U.S. at 404-05. The Commonwealth
therefore has failed to make the necessary showing to warrant mandamus relief.
III. Conclusion
For the foregoing reasons, we will deny the petition for a writ of mandamus.

remedies to address particular safety and confidentiality concerns. We note that the
Commonwealth has never requested any of them.
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